Democrats are finally grasping that their voters do not like the Supreme Court and do not want to be represented by politicians who defend it.
On Wednesday, the House of Representatives voted on a version of the “Keep Nine” amendment, which, as the name suggests, would amend the Constitution to cap the Supreme Court at its current size of nine justices. Given that the Court’s six-justice conservative supermajority has spent the last six years happily implementing the Republican Party policy agenda by judicial fiat, it is not really a surprise that GOP lawmakers approve of the status quo and would prefer to maintain it indefinitely.
House Democrats, to their credit, did not take the bait: Of the 206 of them who voted on the joint resolution, 205 voted no. I would encourage North Carolina Representative Don Davis, the lone Democrat who for some godforsaken reason felt compelled to align himself with the likes of Texas Senator Ted Cruz, House Speaker Mike Johnson, and President Donald Trump, to pay special attention to the rest of this post.
To be clear, no one (including Johnson) actually thought the amendment was going to pass. For one thing, Congress hasn’t passed a substantive amendment to the Constitution since the Nixon administration. For another, amending the Constitution requires a two-thirds vote in both the House and the Senate, which Republicans control by margins of just five and six seats, respectively.
Instead, in a press conference on Tuesday, Johnson explained that he wanted to force Democrats who are not aligned with “communists and socialists” to “put their money where their mouth is.” This was, in other words, a rather hamfisted attempt at political intimidation: Johnson’s message was that Serious Democrats respect the Court and understand the importance of preserving its current form, and that Democrats who vote no are thus “communists and socialists” and cannot be taken seriously.
“We know that the nine justices of the Supreme Court has been the model that has served this country for many, many years, and it does not need to change,” Johnson said. “If we go down the road of packing the Supreme Court, it turns into a political palooza, and it would not serve the country.”
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There are several reasons that Johnson’s argument is characteristically facile and stupid. The size of the Supreme Court is set by federal law, which Congress can change at any time. It has exercised this power on at least five previous occasions, and as a result, the Court has consisted of as few as six and as many as ten justices. The most recent legislative change did not even require a statute: After the death of Justice Antonin Scalia in February 2016, Senate Republicans’ decision to keep the seat vacant effectively reduced the size of the Court to eight justices for 14 months. There is nothing special or significant about the number nine, other than the fact that it has been working out pretty well for Mike Johnson of late.
Setting all that aside, there was an even simpler reason for Democratic lawmakers to tell Johnson to go to hell: Democratic voters despise the Supreme Court and have no interest in being represented by politicians who performatively defend it. In a July Washington Post-Ipsos poll, for example, 55 percent of respondents said they disapprove of the Court, including 75 percent of Democrats and 59 percent of independents. Almost half—46 percent—said that the Court is deciding its Trump-related cases based on the justices’ political views, and within that group, 66 percent said that those cases (wouldn’t you know it) usually come out his way.
As I wrote at the time, a different way of understanding this poll is that, on net, the share of people who perceive the Court as an explicitly pro-Trump body these days is 30 percent. For Democrats on the campaign trail, “The Supreme Court has been captured by pro-Trump Republicans who only care about the legal rights of evangelical Christians and Fortune 500 CEOs” is about as reliable an applause line as it gets.
Historically, expansion has polled less well than other Court reform proposals, which means that Democratic politicians have been skittish about backing it in public. But when the Court is this unpopular, there is good reason to believe that continuing to be cautious is both bad policy and bad politics. In February, a Strength In Numbers-Verasight poll found that 39 percent of respondents supported expansion, 32 percent opposed it, and 29 percent were not sure, and as G. Elliott Morris pointed out at Strength In Numbers, a big chunk of “don’t know” responses can indicate “soft support” for a given policy. Put differently, there are people—perhaps a lot of people—who are more intrigued than ever by the idea of Court expansion, and whose votes might be available to whichever politicians are savvy enough to endorse it first.
I concede that 200-plus no votes on a GOP stunt that had zero chance of passing is good and encouraging, yes, but not the same as 200-plus yes votes on a bill to actually expand the Supreme Court under a hypothetical future Democratic president. During the second half of the Biden administration, proposals to add justices to the Court never picked up more than 66 supporters in the House, largely because neither Biden nor Democratic leadership spent the time or energy making the case to voters when they had the chance.
As I’ve written before, the party cannot afford to make that mistake again. What Wednesday’s lopsided vote suggests is that at the very least, Democrats are (finally) starting to understand that dutifully propping up an institution their voters hate is more of a political liability than getting called a “communist and socialist” by Mike Johnson, a guy who might be out of a job in five months.
The caucus still has a long way to go to get where it needs to be. But the opportunity to expand the Court will be there. It will be on them to take advantage of it.
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